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Appeal No. 19-14894-AA IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
VIRGINIA VALLEJO,
Plaintiff-Appellant, v.
NARCOS PRODUCTIONS, LLC, et al, Defendants-Appellees.
Appeal from the United States District Court for the Southern District of Florida
Case No. 1:18-23462-RS (Hon. Rodney Smith)
BRIEF OF AMICI CURIAE PROFS. MARK LEMLEY, MARK MCKENNA, JOSEPH SCOTT MILLER, JENNIFER
ROTHMAN, REBECCA TUSHNET, AND EUGENE VOLOKH IN SUPPORT OF DEFENDANTS-APPELLEES
Eugene Volokh Amicus Brief Clinic UCLA School of Law 385 Charles E. Young Dr. E Los Angeles, CA 90095 (310) 206-3926 [email protected] Counsel for Amici Curiae*
* Counsel would like to thank Tanner Laiche, Rachel Levin, and Aaron Schroeder,
UCLA School of Law students who worked on the brief.
i
Rule 26.1 Disclosure Statement and Certificate of Interested Persons
Amici Curiae certify that, to the best of their knowledge, information, and belief, the
only persons who have an interest in the outcome of this appeal, besides the ones identified
in the appellees’ brief, are the amici themselves (all individuals):
1. Lemley, Mark A.
2. McKenna, Mark.
3. Miller, Joseph Scott.
4. Rothman, Jennifer.
5. Tushnet, Rebecca.
6. Volokh, Eugene (as amicus and counsel for amici).
Defendants-appellees have consented to the filing of this amicus brief, but plaintiff-
appellant has not.
DATED: May 20, 2020 Respectfully submitted, s/ Eugene Volokh Eugene Volokh
ii
Table of Contents
Interest of the Amici Curiae ................................................................................................. 1
Statement of the Issues ......................................................................................................... 1
Summary of Argument ......................................................................................................... 2
Argument .............................................................................................................................. 3
I. A finding of substantial similarity requires similarities between the two works’ protected expression, not just in the uncopyrightable facts ........................................... 3
A. Facts contained in an autobiographical work are uncopyrightable ......................... 3
B. Vallejo must prove substantial similarity in the protected expression between her memoir and Narcos for copyright infringement, not “modified substantial similarity” ................................................................................................................ 7
II. The only similarities between Narcos and Vallejo’s memoir are uncopyrightable facts ................................................................................................... 10
A. The alleged similarities in the Revolver Scene are uncopyrightable facts ............ 10
B. The similarities in the Revolver Scene are in any event scenes a faire ................. 12
C. The alleged similarities in the Palace in Flames scene are uncopyrightable facts ........................................................................................................................ 15
III. Any protected arrangement and coordination of facts in Vallejo’s memoir is not present in Narcos ................................................................................................... 18
Conclusion .......................................................................................................................... 19
Certificate of Compliance .................................................................................................. 21
Certificate of Service .......................................................................................................... 22
iii
Table of Citations
Cases
Atari, Inc. v. N. Am. Philips Consumer Elecs. Corp., 672 F.2d 607 (7th Cir. 1982) .......... 8
Comins v. Discovery Commc’ns, Inc., 200 F. Supp. 2d 512 (D. Md. 2002) ....................... 5
Corbello v. Devito, 2015 WL 5768531 (D. Nev. Sept. 30, 2015) ....................................... 5
Effie Film, LLC v. Pomerance, 909 F. Supp. 2d 273 (S.D.N.Y. 2012) ....................... 14, 18
Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) ....................... passim
Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) ............ passim
Herzog v. Castle Rock Entm’t, 193 F.3d 1241 (11th Cir. 1999) .................................. 12, 13
Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir. 1980) .............................. 5
Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129 (C.D. Cal. 2001), aff’d in part, dismissed in part, 90 F. App’x 496 (9th Cir. 2003), as amended on denial of reh’g (Mar. 9, 2004) ............................................................................................................. 4, 11
Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995) ............................................. 9
Kustoff v. Chaplin, 120 F.2d 551 (9th Cir. 1941) ................................................................ 8
Lil’ Joe Wein Music, Inc. v. Jackson, 245 F. App’x 873 (11th Cir. 2007) .......................... 9
Miller v. Universal City Studios, Inc., 650 F.2d 1365 (5th Cir. 1981) .............................. 11
MiTek Holdings, Inc. v. Arce Eng’g Co., Inc., 89 F.3d 1548 (11th Cir. 1996) ................... 7
Myers v. Mail & Express Co., 36 C.O.Bull. 478 (S.D.N.Y.1919) ..................................... 19
Nash v. CBS, Inc., 899 F.2d 1537 (7th Cir. 1990) ............................................................... 5
iv
Norman v. Columbia Broad. Sys., Inc., 333 F. Supp. 788 (S.D.N.Y. 1971) ..................... 19
Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218 (11th Cir. 2008) .............. 7, 9
Peter Letterese & Assocs., Inc. v. World Inst. of Scientology Enterprises, 533 F.3d 1287 (11th Cir. 2008) ....................................................................................................... 7
Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303 (2d Cir. 1966) ............. 5
Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003) .............................................................. 4, 12
Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc) .................................. 8
Stonesifer v. Twentieth Century-Fox Film Corp., 48 F. Supp. 196 (S.D. Cal. 1942), aff’d, 140 F.2d 579 (9th Cir. 1944) .................................................................................. 8
Suid v. Newsweek Magazine, 503 F. Supp. 146 (D.D.C. 1980) ......................................... 16
Thompson v. Looney’s Tavern Prods., Inc., 204 F. App’x 844 (11th Cir. 2006) ............ 2, 7
Victor Lalli Enterprises, Inc. v. Big Red Apple, Inc., 936 F.2d 671 (2d Cir. 1991) ............ 4
Walker v. Time Life Films, Inc., 784 F.2d 44 (2d Cir. 1986) ............................................. 16
Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95 (2d Cir. 2014) ..................................... 3
Other Authorities
Amando a Pablo, Odiando a Escobar 2007 & 2017, Virginia Vallejo (last visited Apr. 2, 2020), https://virginiavallejo.com/en/libros/ ........................................................ 6
Virginia Vallejo, Loving Pablo, Hating Escobar (2018) ..................................................... 6
Treatises
1 Nimmer on Copyright § 2.11[A] (2019) ........................................................................... 2
4 Nimmer on Copyright § 13.07 (2019) ............................................................................... 6
v
Regulations
37 C.F.R. § 202.1 ............................................................................................................... 16
1
Interest of the Amici Curiae1
Amici are all law professors who have extensively taught and written about intellectual
property law. They are:
1. Mark A. Lemley, Stanford Law School.
2. Mark McKenna, Notre Dame Law School.
3. Joseph Scott Miller, University of Georgia School of Law.
4. Jennifer E. Rothman, LMU Loyola Law School, Los Angeles.
5. Rebecca Tushnet, Harvard Law School.
6. Eugene Volokh, UCLA School of Law.
Statement of the Issues
Whether the District Court was correct in concluding that no reasonable trier of fact can
find substantial similarity in copyrightable expression between Vallejo’s memoir and Sea-
son 1 of Narcos?
1 No counsel for a party authored this brief in whole or part, nor did any person or entity, other than amici or their counsel (or counsel’s employer, UCLA School of Law), make a monetary contribution to the preparation or submission of this brief.
2
Summary of Argument
“The most fundamental axiom of copyright law is that no author may copyright his
ideas or the facts he narrates.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S.
340, 344-45, (1991) (internal citation and quotation omitted). “One who discovers an oth-
erwise unknown fact may well have performed a socially useful function, but the discovery
as such does not render him an ‘author’ in either the constitutional or statutory sense for
copyright.” Thompson v. Looney’s Tavern Productions, Inc., 204 F. App’x 844, 849 (11th
Cir. Nov. 7, 2006) (quoting 1 Nimmer on Copyright § 2.11[A] (2019)).
Virginia Vallejo alleges that the TV show Narcos infringed the copyright in her memoir
Loving Pablo, Hating Escobar. But Vallejo’s memoir has been presented as a factual ac-
count of her relationship with Colombian narcotrafficker Pablo Escobar. Vallejo may not
copyright the facts contained in her biographical memoir—and this principle is not altered
when dealing with personal, rather than historical, facts.
And though Vallejo does have a copyright in the protectible expression of those facts,
Narcos is not substantially similar to Vallejo’s memoir with respect to such expression.
Vallejo alleges that two scenes in Narcos—the Revolver Scene and the Palace in Flames
3
scene—infringe her memoir, but expressive elements from Vallejo’s memoir are not pre-
sent in either scene in Narcos. Rather, Narcos only used the underlying facts contained in
the memoir and presented those facts in a new and original arrangement.
The District Court thus properly granted summary judgment in favor of Narcos.
Argument
I. A finding of substantial similarity requires similarities between the two works’ protected expression, not just in the uncopyrightable facts
A. Facts contained in an autobiographical work are uncopyrightable
It is “universally understood” that there can be no copyright in facts. Feist Publications,
499 U.S. at 344. “No author may copyright his ideas or the facts he narrates.” Harper &
Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556 (1985). Thus, if a work
contains factual information, copyright law protects only the author’s original expression:
“Everything else in the work, the history it describes, the facts it mentions, and the ideas it
embraces, are in the public domain free for others to draw upon.” Zalewski v. Cicero
Builder Dev., Inc., 754 F.3d 95, 102 (2d Cir. 2014). Even when a plaintiff’s work is based
on personal accounts of what really happened, “Plaintiffs cannot claim to have the exclu-
sive right to exploit these facts for dramatic purposes, even if Defendants only learned of
the alleged events . . . by reading Plaintiffs’ works.” Idema v. Dreamworks, Inc., 162 F.
4
Supp. 2d 1129, 1183 (C.D. Cal. 2001) (finding no infringement when defendant used only
the facts from plaintiff’s autobiographical works for their film), aff’d in relevant part, ap-
peal dismissed in part, 90 F. App’x 496 (9th Cir. 2003).
Vallejo makes three separate arguments for why the facts in her memoir nonetheless
warrant copyright protection, but all three lack merit.
First, Vallejo claims that the district court erred because it “failed to recognize a legal
distinction between historical and non-historical facts.” Appellant Br. 36. But facts are un-
copyrightable even when they are not “newsworthy fact[s] or historical event[s],” Appel-
lant Br. 37. Local telephone numbers, horse racing statistics, and components of the jelly-
fish physiology are all uncopyrightable, for example. Feist, 499 U.S. at 361; Victor Lalli
Enterprises, Inc. v. Big Red Apple, Inc., 936 F.2d 671, 673 (2d Cir. 1991); Satava v. Lowry,
323 F.3d 805, 811 (9th Cir. 2003). “No one may claim originality as to facts . . . [and] [t]he
same is true of all facts—scientific, historical, biographical, and news of the day.” Feist,
499 U.S. at 347-48 (internal citation and quotation omitted). The personal facts contained
in Vallejo’s autobiographical work, whether or not viewed as “history,” are still unpro-
tected facts. See Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 307 (2d
5
Cir. 1966) (finding that the facts about Howard Hughes taken from a biographical maga-
zine article were not copyrightable because biographies constitute “fundamentally personal
histories”).
Second, Vallejo claims that her memoir is not entirely factual because it is a “recon-
struction of memories from over 20 years ago,” written “through the lens of her unique
perspective.” Appellant Br. 26-28, 38. But “recollections of real places where real events
are alleged to have occurred, are still claims of historical fact, not creative elements.” Cor-
bello v. Devito, 2015 WL 5768531, at *12 n.13 (D. Nev. Sept. 30, 2015). Even if Vallejo’s
reconstruction consisted of a “subjective interpretation and expression” of past events, Ap-
pellant Br. 53, “an historical interpretation, even if it originated with the plaintiff, is not
protected by copyright,” Comins v. Discovery Commc’ns, Inc., 200 F. Supp. 2d 512, 519
(D. Md. 2002) (internal quotations omitted), and interpretations of one’s memories are a
form of historical interpretation. See also Hoehling v. Universal City Studios, Inc., 618
F.2d 972, 978 (2d Cir. 1980) (holding that plaintiff’s interpretation of the possible causes
of the destruction of the Hindenburg was not protected by copyright); Nash v. CBS, Inc.,
899 F.2d 1537, 1541 (7th Cir. 1990) (holding that plaintiff’s historical interpretation of the
6
life of infamous gangster John Dillinger, and that he survived and retired to the west coast,
was not copyrightable expression).
Third, Vallejo claims that her memoir should not be treated as being entirely factual,
citing Nimmer on Copyright as saying that “there is some indication that courts will not
imply a representation that a work is entirely factual . . . in the absence of an express rep-
resentation that the entire work is factual.” Appellant Br. 28. But the memoir has indeed
been represented as factual. Vallejo states on her website that the memoir is “a historical
document about the corruption of political Colombian dynasties,” and the “only truly inti-
mate biography of the head of the Medellín cartel.” Amando a Pablo, Odiando a Escobar
2007 & 2017, Virginia Vallejo (last visited Apr. 2, 2020), https://virginiavallejo.com/en/
libros/. The front cover of the 2018 edition holds itself out as being a “shocking true story.”
Virginia Vallejo, Loving Pablo, Hating Escobar (2018).
Given that the memoir has been held out as factual, Vallejo cannot for the purpose of
litigation “subsequently claim[] that [her] . . . factual work was actually fictitious, and
hence contains protectible expression.” 4 Nimmer on Copyright § 13.07 (2019). Rather, the
“express representations that [her] work is factual” cause her to be “estopped from claiming
7
fictionalization and therefore a higher level of protection.” Thompson v. Looney’s Tavern
Prods., Inc., 204 F. App’x 844, 849 (11th Cir. 2006).
B. Vallejo must prove substantial similarity in the protected expression between her memoir and Narcos for copyright infringement, not “modified substantial similarity”
“Copyright protects original expression only; it does not extend to any underlying
ideas,” Peter Letterese & Assocs., Inc. v. World Inst. of Scientology Enterprises, 533 F.3d
1287, 1302 (11th Cir. 2008), or, as the preceding discussion noted, facts. To establish copy-
right infringement, therefore, Vallejo must prove that (1) Narcos, “‘as a factual matter,
copied portions of the plaintiff’s [work],’” and (2) “‘those elements of the [copyrighted
work] that have been copied are protected expression.’” Id. at 1300 (quoting MiTek
Holdings, Inc. v. Arce Eng’g Co., Inc., 89 F.3d 1548, 1554 (11th Cir. 1996)).
Because Narcos has conceded the first prong—factual copying—for purposes of the
summary judgment motion, the analysis turns on the second prong. The second prong fo-
cuses on the question of substantial similarity: whether “an average lay observer would
recognize the alleged copy as having been appropriated from the copyrighted work.”
Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1224 (11th Cir. 2008). The
average observer “must take into account that the copyright laws preclude appropriation of
8
only those elements of the work that are protected by the copyright,” and appropriation of
unprotected elements is not infringement. Atari, Inc. v. N. Am. Philips Consumer Elecs.
Corp., 672 F.2d 607, 614 (7th Cir. 1982) (emphasis added). “Crucially, because only sub-
stantial similarity in protectible expression may constitute actionable copying that results
in infringement liability, ‘it is essential to distinguish between the protected and unpro-
tected material in a plaintiff’s work.’” Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th
Cir. 2020) (en banc).
Vallejo urges this court to use a “modified substantial similarity standard” because
“there will be differences in the works due to constraints inherent in utilizing differing
media.” Appellant Br. 41. But the cases Vallejo cites do not actually support anything other
than the existing standard, which focuses on whether the defendant took the expression and
not just the idea or the facts. See Kustoff v. Chaplin, 120 F.2d 551, 559 (9th Cir. 1941)
(finding no infringement because there was “not a substantial copying . . . [of] any copy-
righted features of the plaintiff’s said book”); Stonesifer v. Twentieth Century-Fox Film
Corp., 48 F. Supp. 196, 199 (S.D. Cal. 1942) (finding infringement only because of simi-
larities of protected expression—“the story or the theme, central idea or plot, treatment and
development”), aff’d, 140 F.2d 579 (9th Cir. 1944); Atari, Inc., 672 F.2d at 614 (asking
9
“whether the accused work is so similar to the plaintiff’s work that an ordinary reasonable
person would conclude that the defendant unlawfully appropriated the plaintiff’s protecti-
ble expression”).
As this Court’s cases makes clear, even when an “ordinary observer is led to believe
that the film is a picturization of the story,” Appellant Br. 41-42, the ordinary observer
must focus only “on similarity of expression, i.e., material susceptible of copyright protec-
tion.” Oravec, 527 F.3d at 1224. And for factual and historical works, like Vallejo’s mem-
oir, courts must be “more discerning” than the average lay observer by “extract[ing] the
unprotectible elements . . . and ask whether the protectible elements, standing alone, are
substantially similar.” Lil’ Joe Wein Music, Inc. v. Jackson, 245 F. App’x 873, 877 (11th
Cir. 2007) (citing Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir. 1995)).
Without such extra discernment, many works that are based on the same factual account
will seem similar at first glance; but stopping at that first glance would allow the first teller
of a factual account to monopolize it—and will deter others from using it—contrary to the
copyright law principle that only expression is protected by copyright, and facts are not.
10
II. The only similarities between Narcos and Vallejo’s memoir are uncopyrightable facts
Narcos copied only facts from Vallejo’s Memoir, and not any “aspects of the work—
termed ‘expression’—that display the stamp of the author’s originality.” Harper & Row
Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 547 (1985). Vallejo specifically
claimed that Narcos infringed the Caress of a Revolver chapter and That Palace in Flames
chapter. Yet, reviewing the memoir and Narcos together show that the alleged similarities
are uncopyrightable facts.
A. The alleged similarities in the Revolver Scene are uncopyrightable facts
In her brief, Vallejo lists these allegedly appropriated similarities between the Revolver
Scene in Narcos and her memoir:
(1) “[P]ortrayal of a Colombian Television Journalist with ‘V.V.’ initials,”
(2) “Escobar and V.V., are portrayed alone in an elegant bedroom,”
(3) “V.V. is bound voluntarily to bedroom furniture,”
(4) “Escobar approaching V.V. with a handgun and grabbing her hair,”
(5) “Escobar . . . touching V.V.’s bare skin with the handgun in an act of sexual
foreplay . . . . trac[ing] the revolver in “the near exact [same] trajectory,” and
(6) “Escobar . . . engaging in aggressive banter with V.V. in a threatening tone”
11
(7) “Escobar . . . exert[ing] his dominance over her,”
(8) “V.V. [being] not afraid of Escobar”
(9) “[V.V.] play[ing] along, responding in a submissive manner,” and
(10) “V.V. . . . throwing her head back and moaning in pleasure.”
Appellant Br. 47-48.
As to similarity 1, even assuming the name V.V. in Narcos refers to Virginia Vallejo,
“names . . . are uncopyrightable facts.” Feist Publications, 499 U.S. at 361.
Similarities 2-10 are facts reported by Vallejo, from “an experience in which she was
bound and blindfolded” by Pablo Escobar. Appellant Br. 39. Facts from a personal memory
are still facts, as the court in Harper & Row noted. 471 U.S. at 557 (respondent “possessed
an unfettered right to use any factual information revealed in [President Ford’s memoirs]
for the purpose of enlightening its audience”); see also Idema v. Dreamworks, Inc., 162 F.
Supp. 2d 1129, 1179 (C.D. Cal. 2001) (emphasis in original) (“if events in ‘The Peace-
maker’ bear some passing resemblance to events that happened in Plaintiff Idema’s real
life, there is no infringement of copyright”). Personal factual details of the event, like Val-
lejo being tied to a chair by a dominating Escobar, “do[] not originate with the author of a
book.” Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1368 (5th Cir. July 23, 1981).
12
B. The similarities in the Revolver Scene are in any event scenes a faire
Even if these details are not deemed to be facts (and, for the reasons given above, they
should be), they are barred from protection as scenes a faire—“[i]ncidents, characters, or
settings that are indispensable or standard in the treatment of a given topic” and are thus
not protected by copyright, Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1248 (11th Cir.
1999).
Here, there are few ways to depict a consensual sex scene involving a gun. The details
that two people are portrayed as being alone in a room, that one person approaches the
other with a gun, and that a person moans in pleasure would be “standard, stock, or com-
mon” details of such a scene. Satava v. Lowry, 323 F.3d 805, 810 (9th Cir. 2003). And the
detail that Escobar’s demeanor was dominant and threatening is “indispensable,” Herzog,
193 F.3d at 1248, in the depiction of a man holding a gun as foreplay. It would have been
hard to realistically portray his demeanor as submissive or even neutral—holding a gun to
another inherently comes across as aggressive. Likewise, the use of a weapon during a
sexual encounter, even if consensual, logically reflects an unbalanced power dynamic de-
picted through the dominating and threatening demeanor of the person holding the weapon.
V.V. appearing to be unafraid, submissive, and enjoying the encounter also “necessarily
13
follow[s],” Herzog, 193 F.3d at 1248, in order for the scene to depict the fact that this
encounter was consensual.
Vallejo also alleges that Narcos, in the Revolver Scene, appropriated the theme of
“[u]nderstanding of the manipulation and power dynamics that defined Vallejo’s romantic
relationship with Escobar.” Appellant Br. 50. But the notion that there can be “manipula-
tion” and “power dynamics” in intimate relationships, especially relationships involving
violent men, was doubtless old when Homer was young; no author can monopolize it
through copyright. The expression of romantic partners exhibiting manipulative or domi-
nant behavior is a standard scenes a faire trope, from ancient classics to mob movies and
film noir.
And Narcos’s expression of these tropes of manipulation and power dynamics materi-
ally differs from that in Vallejo’s memoir. For example, in Vallejo’s memoir, the gun traces
circles around Vallejo’s neck, and moves down her abdomen until Vallejo affirmatively
and aggressively objects to it moving down any further, at which point the gun is put away.
Opinion, Doc. 120, at 4. Vallejo alleges that this scene shows her influence over Escobar—
that it is actually she “who holds the power and manipulates him.” Appellant Br. 50. But
in Narcos, the gun moves from Vallejo’s chin, around her breasts, and then towards her
14
genitals. Mot. for Summary Judgment, Doc. 77, at 11. V.V. does not object or try to assert
her dominance over Escobar. Instead, the power seems to be held entirely by Escobar, with
V.V. completely at his mercy. Opinion, Doc. 120, at 4. The idea of manipulation and power
dynamics are thus “expressed very differently in the two works and could not prove in-
fringement even if it were protectible.” Effie Film, LLC v. Pomerance, 909 F. Supp. 2d
273, 312 n.20 (S.D.N.Y. 2012). Any other details present in Vallejo’s work that go beyond
scenes a faire are not present in Narcos:
Vallejo’s Memoir Narcos Revolver Scene
• Vallejo is bound to the chair • Vallejo is bound to the bed
• Vallejo is not bound at first, and resists
being handcuffed
• The scene begins with V.V. already
being bound
• Escobar retrieves a revolver from a
safe
• Escobar enters the scene already
with a pistol in hand
• Escobar and V.V. do not discuss her
assisting him
• Escobar says to V.V. that she is go-
ing to help him get into Congress
15
• Escobar ceases to caress Vallejo with
the revolver
• Escobar does not cease caressing
V.V. with the pistol
• The scene ends with Vallejo taking the
blindfold off, and seeing a dozen fake
passports on the floor in front of her
• The scene ends with V.V. climax-
ing, and V.V. and Escobar laying
down on the bed
Doc. 120, at 3-5.
C. The alleged similarities in the Palace in Flames scene are uncopyrightable facts
In her brief, Vallejo also lists the allegedly appropriated similarities between the Palace
in Flames scene and her memoir:
(1) The name Palace in Flames as both the chapter name in Vallejo’s memoir
and the name of the Narcos episode,
(2) “Escobar and M-19’s Ivan are portrayed as meeting in a hideout,”
(3) “Ivan is depicted as having facial hair, being of medium build, having blunt
features, and wearing civilian clothing,”
(4) “Ivan discusses the risk of casualties and the possibility of danger,” and
(5) “Escobar replies by offering two million dollars.”
Appellant Br. 53.
16
First, even if the Narcos copied the name of a chapter title from Vallejo’s memoir, That
Palace in Flames, “[w]ords and short phrases such as names, titles, and slogans” are not
copyrightable. 37 C.F.R. § 202.1. Here, Narcos only copied three words—“Palace in
Flames.” This is a classic example of an unprotectible short phrase.
Second, for the same reasons as in the Revolver Scene, the event and depictions in the
Palace in Flames scene are uncopyrightable facts. Vallejo’s perceptions of the event—the
location, the characters’ attire, and the characters’ depictions—are recollections of actual
events, and thus are not protected. See e.g., Walker v. Time Life Films, Inc., 784 F.2d 44,
46, 49 (2d Cir. 1986) (“depict[ions of] the violence and urban decay of the 41st Precinct of
the New York City Police Department” in plaintiff’s book, based on his own recollected
experiences, are not protected).
For similar reasons, any statements that Ivan and Escobar really made are also unpro-
tected. An “author of a factual work may not . . . claim copyright in statements made by
others and reported in the work since the author may not claim originality as to those state-
ments.” Suid v. Newsweek Magazine, 503 F. Supp. 146, 148 (D.D.C. 1980); see also Har-
per & Row, 471 U.S. at 544 (finding that “quoted remarks of third parties” are uncopy-
rightable material).
17
Nor does the Palace in Flames scene appropriate any of the original themes or charac-
terizations present in the memoir. For the Palace in Flames scene, Vallejo also alleges that
the same ideas of “manipulation and power dynamics” and “revolutionary overtones” exist
in both her memoir and in the Narcos scene. Appellant Br. 54-55. But these are just unpro-
tectible ideas, which are expressed differently in the two works.
In Vallejo’s memoir, it is Vallejo who bonds with Ivan using revolutionary overtones,
and not Escobar. Doc. 120, at 6. The power dynamic is between Escobar, Ivan, and Vallejo,
who has earned Ivan’s respect and shares sympathy for the “fight for the rights of the weak-
est.” Doc. 77, at 14.
But in Narcos, there is no shared revolutionary goal. It is only Escobar who pleads with
Ivan using revolutionary overtones—“fighting a revolution comes with sacrifice” and “it
is our duty to fight to the very end.” Doc. 120, at 7. Narcos emphasizes the division in
revolutionary goals when a female nurse enters the scene and condemns the deal made
between Ivan and Escobar by stating, “I fight for the people, not for drug traffickers.” Id.
at 8. The nurse then tells her American co-worker, “Pablo Escobar is planning something
with a Communist group called the M-19. I don’t know what it is, but I know it’s going to
be bad.” Id. These differences among the characters in Narcos highlight how the violent
18
means shared by Escobar and Ivan to further their goals differ from the revolutionary
means sought by the nurse, who is representing the Colombian people.
III. Any protected arrangement and coordination of facts in Vallejo’s memoir is not present in Narcos
Since “[n]o one may claim originality as to facts,” an author of a work that heavily relies
on facts “can claim originality, if at all, only in the way the facts are presented.” Feist
Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 347, 358 (1991). In a biographical
work like Vallejo’s, this means that she can claim copyright only through her writing style,
presentation and “the creative arrangement of unprotectible historical facts . . . achieved
through narrative devices (theme, characterization, and pace).” Effie Film, LLC v. Pomer-
ance, 909 F. Supp. 2d 273, 297 (S.D.N.Y. 2012).
But Narcos did not adopt Vallejo’s original language or presentation of facts. Neither
scene in Narcos appropriated Vallejo’s “excerpted subjective descriptions and portraits of
public figures,” Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 563
(1985), and there was no literal copying from her work. And, while it may be true that
Vallejo “vividly describes the setting, the sounds she hears, her thoughts and feelings at
19
the time,” Appellant Br. 51, as the District Court noted, Vallejo does not point to any “spe-
cific original, non-factual portions of her memoir that have been copied.” Doc. 120, at 13.
Vallejo also cannot claim protection of the retelling of historical events in chronological
order in both the Revolver Scene and Palace in Flames. “[N]ot only are all the facts rec-
orded in a history in the public domain, but, since the narration of history must proceed
chronologically . . . the order in which the facts are reported must be the same in the case
of a second supposed author.” Myers v. Mail & Express Co., 36 C.O. Bull. 478, 479
(S.D.N.Y. 1919) (Learned Hand, J.) (quoted in Norman v. Columbia Broad. Sys., Inc., 333
F. Supp. 788, 796-97 (S.D.N.Y. 1971)).
Conclusion
The only similarities between Vallejo’s memoir and Narcos are uncopyrightable facts
that Vallejo chose to make public about her interactions with Escobar. Despite Vallejo’s
attempt in litigation to recharacterize her biographical memoir as “expression,” the facts
contained in the memoir are part of the public domain available to every person. The
District Court thus did not err in granting summary judgment for Narcos.
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Dated: May 20, 2020 Respectfully submitted,
s/ Eugene Volokh
Eugene Volokh Amicus Brief Clinic UCLA School of Law 385 Charles E. Young Dr. E Los Angeles, CA 90095 (310) 206-3926 [email protected] Counsel for Amici Curiae
21
Certificate of Compliance
1. This brief complies with the type-volume limitation of Federal Rule of Appellate Pro-
cedure 32(a) because it contains 3,937 words, excluding the parts of the brief exempted
by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Federal Rule of Appellate Proce-
dure 32(a)(5) and the type-style requirements of Federal Rule of Appellate Procedure
32(a)(6) because it has been prepared in a proportionally spaced typeface using Mi-
crosoft Word 365 ProPlus in 14-point Times New Roman.
s/ Eugene Volokh
Eugene Volokh
May 20, 2020
22
Certificate of Service
I certify that, on May 20, 2020, the Brief Amici Curiae of Profs. Mark Lemley, Mark
McKenna, Joseph Scott Miller, Jennifer Rothman, Rebecca Tushnet, and Eugene Volokh
was filed electronically through the Court’s CM/ECF system. Notice of this filing will be
sent by e-mail to all parties by operation of the Court’s electronic filing system.
s/ Eugene Volokh
Eugene Volokh
May 20, 2020
